from the fingers-crossed-that-they-get-this-right dept

We've been covering a very important copyright case -- Golan vs. Holder -- which involves a key question about copyright law. While the case may seem narrowly focused, it has much larger implications. As we've discussed, it's the third case in a trio of cases that involved Larry Lessig, concerning the ability of the US to retroactively change copyright law. The first two, Eldred and Kahle, both ended up in losses, but they did get the court to establish some boundaries for when and how the US could retroactively change copyright law. As a very quick review, Eldred argued that the ongoing extension of copyright violated the "limited" part of the copyright clause in the Constitution. The Supreme Court eventually said that this was Congress's call, and noted that it wouldn't review copyright extension on First Amendment grounds unless the change in the law went beyond the "traditional contours of copyright protection." Of course, many of us believe that an automatic copyright that lasts multiple lifetimes goes way beyond the traditional contours of copyright protection that kicked off with very limited protections, requiring registration and only lasting for a short period of time. But what do we know?

The second case, challenging the registration/automatic question, pointed out that under the Eldred ruling, the 1976 Copyright Act should be reviewed for First Amendment issues, since it certainly changed the traditional contours by switching copyright from "opt-in" to "opt-out." Actually, it didn't even switch it to opt-out, as there's really no way to officially opt-out of copyright coverage. That seems like a massive change to the traditional contours of copyright law. However, the appeals court got confused and simply assumed that what was being argued was the same issues in Eldred.

The third case is this case, the Golan case -- which noted that due to a treaty agreement, the US took some foreign books that had been in the public domain, and retroactively put them under copyright protection, putting some sellers of those books at risk for infringement. Two years ago, we were a bit surprised to find a court agreed, and said that this part of the Copyright Act was unconstitutional. Basically, the court suggested that Congress could have written the law in such a way that left those works in the public domain. Last summer, the 10th Circuit appeals court reversed the lower court, and basically said it was okay to take these works out of the public domain, and that there was no First Amendment issue in doing so, because copyright law "addresses a substantial or important governmental interest." For a variety of reasons, I found this reasoning to be quite problematic.

Golan appealed, and it was just announced that the Supreme Court will actually take the case and will review the First Amendment issue (along with the Progress Clause issue). While I wouldn't be surprised if the Court made a ruling that flies in the face of reason, as it did with Eldred, perhaps we can be hopeful that some on the court will finally recognize how the massive expansion of copyright over the last century really does raise serious First Amendment issues. This is an important case to follow, even if it seems likely that the Supreme Court will make another bad ruling. And, even though it may be a narrow issue, getting the Supreme Court to actually look at some of the issues when the First Amendment comes into conflict with copyright is still important.

It is important to note however that this isn't a case about the first amendment implications of copyright as a whole, only a very narrow issue of a few books that may have been public domain and returned to copyright. That is a fairly narrow case. I also personally don't see it as a winning case either, as it would be somewhat difficult to show actual harm, the harm has been all pretty theoretical.

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Specifically, on what exactly are supreme court decisions based on? To me, most of their decisions sound like pure opinion, which would make them "benevolent dictators" in a way.

Pretty much. The court gets to decide if there is a "government interest" in doing the thing (there is), and whether or not their solution is "narrowly tailored" enough to pass constitutional muster (it is).

Government: We'd like to ban guns!Supreme Court: Can't. Second amendment.Government: Correction. We'd like to only ban the guns on this list. *hands the Supreme Court a list of every gun model ever produced*Supreme Court: Hmmm, well now. Since someone could theoretically come up with a new gun type tomorrow that isn't on this list, the people still have the theoretical ability to own a theoretical gun, so why not?Government: Also, we'd like to ban guns in all public locations.Supreme Court: Sure.Government: And private residences!Supreme Court: Nope, sorry. Too far.Government: Well, what if we allow each person to keep one gun at home, provided it's dismantled, and the pieces are placed in separate, triple-locked boxes and distributed around the house?Supreme Court: Narrow enough for me! Wouldn't want to infringe on people's right to bear arms, now would we?

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there is no conceivable way that i can see where the SCOTUS will reduce the current copyright term. Its reach would be entirely too far reaching and negatively impact too many businesses for them to do that in this economy. That said, this is a non issue.

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"...how these foreign books being removed from public domain are a First Amendment issue."

The free speech issue is whether the speech of individuals who performed or distributed public domain works prior to 1994 should have the distribution of those same works restrained from 1994 onward -- 1994 being the date when some works within the public domain returned to copyrighted status

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I'll give it a shot (making the First Amendment connection):

The reasoning needs to built up one block at a time to be clear, so please bear with me.

Let's start by remembering that we have a legal hierarchy. The Constitution is the ultimate document. All laws made by Congress are subordinate to the Constitution, and one of the (if not *the*) prime purposes of the Supreme court is act as a check and balance on Congress.

The Supreme Court has the responsibility and obligation to evaluate laws if a compelling case is made that the law is is not consistent with the Constitution, and they have the power to rule any law unconstitutional and therefore invalid.

Article 1 Section 8 of the constitution allows Congress to "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

The First Amendment guarantees every American citizen the right to perform, publish, and distribute the speech of their choice.

Importantly: there is nothing in the fist amendment that specifies that the publisher must be the *author* of the speech the choose to publish. Nor is there there any mention of ownership of rights of creative works.

The Golan challenge says that the authors of the writings in question already had their "exclusive Right" for the "limited Time" and that once that limited time had passed the First Amendment guaranteed any American Citizen the Constitutional right to publish those writings.

It maintains that the Uruguay Round Agreements Act (a law, passed by Congress, and therefore subordinate to the Constitution) abridges the Constitutional right guaranteed in the First Amendment, and is not valid under Article 1 Section 8 because that Constitutional provision had been satisfied, and that Section 1 Article 8 in no way shape or form authorizes congress to re-assign exclusive rights to something that is already in the public domain.

So to summarize:
As a law, the Uruguay Round Agreements Act must not abridge any Constitutionally guaranteed right. Golan et al. say that it does abridge their Fist Amendment right to publish or perform any-dam-thing that they feel like publishing or performing whether they wrote it or not. and that there is nothing in the Constitution that overrides their right (particularly not Article 1 Section 8) therefore that part of the Uruguay Round Agreements Act is unconstitutional and therefore invalid.

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Except that they didn't do anything like that. Your 2nd Amendment rights are broader and more defined than ever. (Except maybe the actual 1700's, when you were required by Congress to purchase and maintain a variety of weaponry. :P)

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It was an example of their thought process, and it's not far off the mark, really. The line is still incredibly murky, since they decided to incorporate the 2nd amendment through "Due Process".

Do both the federal and state government retain the ability to ban specific models and calibers of guns? Yes. How many models and calibers banned is too many? 10 models? 100 models? 90% of all models? I'm sure the Supreme Court will "know it when they see it".

Can both federal and state government put up huge permit fees, yearly taxes, and other barriers to gun ownership? Of course. Does a $200 permit fee infringe upon the 2nd amendment? Does a $200,000 permit? Where is the line? I'm sure the Supreme Court will "know it when they see it".

Can the city of Chicago, after they got slapped down in federal court for banning handguns altogether, require people to have practice time on a gun range before they will grant a permit, and yet also prohibit gun ranges within the city limits? Because that's what they are doing now.

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Are you suggesting that this is an example of a bad decision?

Obviously. If the constitution sucks, amend it, but don't ignore it. Otherwise, the same arguments for "re-evaluating" rights will come back around to bite you when your other freedoms are on the chopping block.

Because, you know, it seems like the government might have an "interest" in silencing critics, especially with the War on Terror and all. Don't worry, I'm sure any laws they pass will be "narrowly tailored" to the specific things you can and can't say, and the specific places you can and can't say them.

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No, the harm would be if all the copies were burned and no longer available. The moving from public domain to copyright for a small number of works didn't significantly diminish anyone's rights or access to the works. I bet you that without checking, you couldn't name any of them.

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The harm to free speech rights in taking even a small amount of works out of the public domain is far more significant than you seem to imply. You seem to ignore the domino effect that will occur with regards to derivative works that would otherwise be given separate copyright protections.

For instance, let's say I create a remake of Fritz Lang's film Metropolis while Lang's film was in the public domain. I spend the sums to hire new actors, set decorators, camera crew etc. On top of that, I create both a new novelization and stage play based on my film (which again, is all based on the original Fritz Lang Metropolis).

Since Metropolis is in the public domain, I don't need to ask anyone's permission or pay off any estate to create my new works based on the original work.

After creating these 3 new works (a remake of the film, a novelization and a stage play), Mr. X licenses the rights from me in order to create a line of T-shirts based on my new works (which are given separate copyright protection, since they contain their own original and creative elements on top of the public domain film).

After spending my time, effort (and perhaps money) to create these new works, the original Fritz Lang film is suddenly yanked out of the public domain and given copyright protection again. The Fritz Lang estate then issues a cease and desist letter to both me and Mr. X, claiming (quite correctly) that all of these new works now violate the copyright of the original Fritz Lang work.

What should the response be? The best case scenario is that I and Mr. X now must pay large (perhaps crippling) fees to the Lang estate in order to distribute our newly created speech. The worst case scenario is that the Lang estate doesn't care how much we pay them, they want these new works permanently enjoined and destroyed.

Either way, the ramifications towards free speech rights are staggering.

Since copyright law no longer requires people to register works in order to get copyright protection, there is no way to know how many derivative works have already been created in the popular culture that were based on public domain works that were yanked back into copyright. The end result is a domino effect that ends up blocking new creative works that were made under the promise of a stable public domain.

So this all affects far more than your misguided claim that "the moving from public domain to copyright for a small number of works [won't] significantly diminish anyone's rights..."

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I fail to see how a suggestion to brush up on ones understanding of the applicable law(s) amounts to FUD. I thought, from your first post, that perhaps you might have an interesting counter argument, but now I see you're just a troll, and not very good one at that.

I'm not an American (thank God) but do find this story interesting. If I were a betting man, I'd put my money on a completely unreasonable ruling that has very little basis in reality. That is what always happens when money, power, and greed all come together.

When are people going to realize that there simply is no perfect solution to the copyright conundrum? For whatever reason, perfection is not allowed in this universe. Balance is, however. For every action there is an equal and opposite reaction. As far as I understand it, the US constitution is not just about rights, it is about well being on an individual basis for all. When a group tries to change or remove altogether rights that truly are self evident, expect heavy resistance. The harder the copyright maximalists push, the harder they will be pushed back. This is simply a fundamental law of the universe. Everyone has to accept the fact that even though there may be a solution to any given problem, it will in all liklihood be one that nobody is 100% happy with. The alternative, as always, is war. It doesn't matter what the issues are, this is human nature and the inevitable repetition of history that always results from those unwilling to compromise. For good or ill, change is coming, and that is the only thing that truly is a sure bet.

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Well, unless you believe that we all should have the right to own nuclear missiles, you probably agree that the 2nd Amendment doesn't give a right to bear any and all arms. So it seems like drawing arbitrary lines not explicitly in the Constitution is exactly what you want the court to do.

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One thing I've been pondering, which is if copyright is extended and public domain works, could an artist/company/estate sue for damages for the period in which the work was public domain?

Logic being that if copyright is necessary to protect investment, and copyright being extended to a work once public domain, then it must be assumed being in the public domain caused some kind of harm or loss of incentive to create such that we indeed needed to pull it out of the public domain.

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Justine, if you created (and completed) the work while it was in the public domain, you would (a) end up with a copyright on your new work (the movie), and (b) would face no issues because you worked from public domain material. You are only bound by the law and the restictions at the time of your actions (creation) not in some future sense.

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because that Constitutional provision had been satisfied, and that Section 1 Article 8 in no way shape or form authorizes congress to re-assign exclusive rights to something that is already in the public domain.

There is also nothing in there that specifically forbids it. There is nothing that says that congress cannot extend the term as it sees fit, there is nothing in there that specifically talks about what happens in the case of an extension to works that may have fallen into the public domain in the interim.

See, you cannot ADD to the constitution what isn't already there. In fact, using the term "limited times" rather than "limited time" suggests that the founders accepted that there may be more than one time period assigned.

Further, and important, it has long been held that free speech rights do not override or remove other rights in the constitution. It is very hard to go against the clearly stated permissions granted in one article, to try to satisfy another.

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The line is only "fuzzy" if you willfully ignore the original intent of the amendment, which was to guarantee the right of citizens to own the standard weapons that an average member of the infantry would carry.

So rifles are in, but I'm not certain how many soldiers carry ICBMs strapped to their backs.

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Justine, if you created (and completed) the work while it was in the public domain, you would (a) end up with a copyright on your new work (the movie), and (b) would face no issues because you worked from public domain material. You are only bound by the law and the restictions at the time of your actions (creation) not in some future sense.

Do you have any legal authority for this claim? I am honestly unfamiliar with any. The whole point is that I wouldn't be working from public domain material - it would be material that is/was given newly vested copyright protection.

Let's say that instead of creating a derivative work, I made a straight digitally cloned copy of the original Metropolis while it was in the public domain. It is MY copy that I have lawfully made. Now Metropolis goes back into copyright and someone wants to make a copy of MY copy. Do you argue that since my copy was made during the public domain period that it is OK to copy from it? That would seem to defeat the purpose of putting it back into copyright. But if people don't have the right to copy my copy once Metropolis is put back into copyright, how can people suddenly have the right to make derivative works? The time frame becomes irrelevant here. It doesn't matter if the act of creation was made in the short public domain "window", and I know of no legal authority which suggests otherwise.

What if I spent vast sums to start creating my derivative work on Metropolis, but only completed 95% of it by the time the original Metropolis was put back into copyright? I guess I'd just be out of luck then? How are we to determine at what date such derivative works are/were created since registration is not necessary?

What if I take my newly created derivative work and immediately will them to the public domain? People should then be able to remake, remix and recreate the work - but under your scenario they wouldn't be able to, since it would still be violating the original Metropolis which now has been given newly vested copyright protections.

It is easy to see the complete mess that would be created under the legal scheme you seem to support.

The Amazon links you point are irrelevant. Nobody argues that the works are locked up - just that you have to pay for them when there should be alternative free avenues via the public domain (which directly affects one's free speech rights). It is the equivalent of saying a poll tax should be constitutional since it doesn't affect one's ability to vote - you just have to pay for the privilege. The Supreme Court has explicitly rejected that argument, as they should in this scenario as well.

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Not saying the U.S. hasn't already passed that "point of no return", just replying with a aphorism that has been shown to be true in bringing down many other countries in the past, and could easily apply in this case as well.

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So, the legality of Section 1 Article 8 allows Congress to pass a law allowing copyright extension to: [Life + One Billion Years]" because that would fall under the "Letter of the Law" and not be considered a "perpetual copyright", since it is clearly defined to exist only for "limited times" and also covers the special "addresses a substantial or important governmental interest" phrase that the Supreme Court so seems to love and adore.

By that same logic, I see no mention of a restriction on the type of arms a person may bear in the 2nd Amendment, so tactical suitcase nukes should be fine for everyone to own. What? The government has placed sane and logical restrictions on the ownership of nuclear weapons by private citizens you say? What in the Constitution gave them the right to do so? Could it be their attempt at using the original intent of the law to outweigh the letter of the law? How draconian of them!

Nothing has changed. It is the same as it always was and forever will be, and whether those in power use the letter of the law to push it into one direction or the intent of the law to push it the other way (while simultaneously paving the road to hell with their alleged "good intentions"), "the law" means what any current government wants it to mean, and nothing else.

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This will ultimately be for the Supreme Court to decide. However, the assertion of Golan et al. is that the First Amendment specifically forbids it through the "Congress will make no law" wording.

As to whether "Times" means multiple times r not, again that is for the Supreme Court to decide.

The Anonymous Coward asked for someone to spell out - without using FUD - how this lawsuit has any bearing on the First Amendment. I attempted to do that. I was not attempting to argue the merits of the case. I am not a constitutional lawyer.

Shall vs Will

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Justine, if you created (and completed) the work while it was in the public domain, you would (a) end up with a copyright on your new work (the movie), and (b) would face no issues because you worked from public domain material. You are only bound by the law and the restictions at the time of your actions (creation) not in some future sense.

There is no domino effect, as you claim. Sorry.

Here is what the Conductors' Guild has said about the issue in their amicus brief to the Supreme Court in this case:

The "restoration" of copyright protection to previously available works both demands a new financial investment from orchestral groups and undermines their previous investments. These new higher rental fees inevitably will result in orchestral groups choosing not to perform canonical works that have been performed frequently for decades. Moreover, an orchestra’s earlier investment in its own sheet music is undermined by this restoration. If the work in question is newly protected, an orchestra is not entitled to perform it simply because it previously purchased a copy of the score. Instead, performance of such a work requires payment of a performance fee or purchase of a blanket license.

[Ending emphasis added]

Would you now care to rethink your claims on there being no 'domino effect'? Or do you feel that the Conductors' Guild is similarly deluded as I am, and that they really wouldn't have to pay performance fees on works they already acquired during a time when the works were in the public domain?

Solution

True they might have re-copyrighted Metropolis, but I might have a way to use characters from it without them being able to do a fucking thing about it...does anyone here know for sure if the book Metropolis was based off of is in the public domain?